Possible precedent in school closing-discrimination cases

In the US Court of Appeals for the Sixth Circuit (Ohio, Mich., Ky., Tenn.), a panel has ruled that a Tennessee school district’s student assignment plan doesn’t violate African-American students’ 14th Amendment equal protection rights. The case is likely to establish an important precedent, essentially killing claims that school closings violate Title VI of the Civil Rights Act of 1964.


In January, Jitu Brown led a multi-city rally against school closures at the King Memorial.

Since the district’s assignment plan doesn’t classify students by race, which would have constituted de jure segregation, the three-judge panel found the district had no “segregative intent” and applied a rational basis review. On that standard, the district—that is, the government—had a legitimate reason for developing the assignment plan: to address the problem of school underutilization.

The idea that nearly empty school buildings should be closed rather than maintained was the reason given for deciding to close schools earlier this year in Philadelphia, Chicago (here and here), and other cities. Groups in those cities have accused school districts of discrimination or racism in violation of Title VI of the Civil Rights Act, but this ruling may halt those lawsuits in their tracks.

I maintained from the first story I wrote about this year’s massive round of school closings in urban areas that I could not see a trace of racism or discrimination in the decision to close underutilized schools (here). But while I saw no discrimination in the decision to close schools, I did see racism in the narrowing of the curriculum at schools in poor neighborhoods (here). Furthermore, if families move away from a school where students’ learning needs aren’t being met because the curriculum has been whittled down to the bare bones, those schools automatically become underutilized (here).

If you follow the logic, the standardized tests initiated by No Child Left Behind and the turnaround methods imposed by Race to the Top and other federal laws have made schools unattractive to good students. When schools don’t meet students’ needs, families move away. When families move away, the schools become underutilized, and it just doesn’t make sense for a school district to spend the public’s money on schools that are nearly empty. Despite the fact that the district’s own policies forced the school into a state of underutilization—and those initial policies were discriminatory, or at least created de facto discrimination—the act of closing the schools is not discriminatory.

In the case where the Sixth Circuit made this ruling, known as Spurlock v. Fox, the schools in Nashville were found to be segregated de facto due to individual families’ preferences on where to live. Chicago has the same situation of de facto segregation. By grouping students into clusters based on geographic location, Nashville tried to reduce the effects of the segregation. But this plan led to further reductions in student attendance at many schools in poor neighborhoods.

In Nashville’s plan, most of the clusters were made up of contiguous zones, but some clusters had zones that didn’t actually share a border with other zones in the cluster. The district provided free transportation for students who attended schools located inside a zone that wasn’t contiguous with the student’s zone. These non-contiguous clusters were mainly black.

In 2008, following a two-year study, Nashville decided to rezone the schools: the new plan aimed to assign students to schools located in their own neighborhoods. The unintended side effect of reducing the problem of underutilization was to increase segregation in a number of schools and racial isolation in the district.

Plaintiffs argued that the schools to which they were assigned under the new plan, located in their neighborhoods, were inferior to the schools to which they had been bused. Plaintiffs said the plan effectively forced mostly black students away from racially diverse schools in more affluent neighborhoods toward racially isolated schools in their own poor neighborhoods. In effect, the decrease in the number and percentage of black students attending the academically superior schools in one cluster, Hillwood, was the basis of their argument.

I have written repeatedly that statistics and demographics are not usually accepted by a court of law as proof of discrimination (here). The Sixth Circuit essentially restated this general principle of American jurisprudence:

If consideration of racial data were alone sufficient to trigger strict scrutiny, then legislators and other policymakers would be required to blind themselves to the demographic realities of their jurisdictions and the potential demographic consequences of their decisions. [There can be no support for the] use of racial demographic data in policymaking, so long as the policy itself does not classify people by race. … [T]he requirement that legislative classifications be color-blind does not demand demographic ignorance during the policymaking process. … The claim that considering demographic data amounts to segregative intent flies in the face of the Supreme Court’s holding that “disparate impact and foreseeable consequences, without more, do not establish a constitutional violation.”

In other words, when students argued that “geography-based school-assignment policies are unconstitutional because they are really nothing more than race-based policies in disguise,” the court was not convinced. It said that such an argument “would mean that any neighborhood-school policy adopted in a community with racially identifiable housing patterns is unconstitutional.”

Chicago, Philadelphia, and many American cities have racially identifiable housing patterns. The school policy itself must classify students by race in order to be unconstitutional, and there’s a lot more—legally speaking—to “racial classification” than demographic data.

The three-part test for discrimination in Nashville

The Sixth Circuit applied a three-part test for discrimination in this case. The first part was presented above: the policy didn’t classify students based on race. The government is under no constitutional obligation to “correct” imbalances in racial distribution of citizens that resulted from factors outside its control, the Sixth Circuit said. Those outside factors certainly include housing choices and patterns, poverty in neighborhoods, and so on.

The second part of the test was to consider de jure discrimination. This means the district would have had to have the specific intention to create segregation and the policy would have had to produce an increase in racial segregation in the schools. Although the court found that the rezoning plan had a segregative effect, plaintiffs couldn’t prove the school board segregated students based on race on purpose.

The third part of the test was to determine if the government had a legitimate interest in creating the rezoning policy. The court found it did have a legitimate interest: to reduce underutilization and spend the public’s money more effectively.

The plaintiffs argued that the policy was only “narrowly tailored” to achieve this purpose and the heart of the policy was racial segregation. But the court found that the “only factor that determines a student’s school choices is his or her place of residence, regardless of race.” Since there is no specific language in the rezoning policy that classifies a student based on race, the schools were not discriminating on the basis of race, period.

As to the rational basis claim—which says the government must have a legitimate purpose for developing the policy—justices said, “The Board’s interest in remedying this problem [of underutilization] and attaining a more efficient allocation of educational resources indisputably qualifies as a legitimate state interest.”

Perhaps the only win for closing schools

In the opinion, the Sixth Circuit said that although the rezoning plan passed constitutional muster, it could say nothing about the wisdom of the plan. It found that the positive effects were minimal compared to the potential and the increased racial isolation and inferior educational outcomes in the plaintiffs’ new schools was potentially harmful.

That is, it was constitutional to do what the schools did, but it was not exactly a good idea. I said, here, that closing schools seems more like a sin than a crime, referring to the accusations of racism being levied against districts that close schools left and right. Unless the Supreme Court steps in and overturns the Sixth Circuit here, I stand by that remark.

Setting a precedent

A federal district court in the District of Columbia, citing the above Nashville case, has ruled that the plaintiffs, in a suit seeking to prevent DC Public Schools from implementing its plan to close a number of its schools, are not entitled to a preliminary injunction. The court concluded that the plaintiffs had failed to demonstrate a likelihood of success on the merits of their claims, given the likelihood that DCPS will refer to Spurlock v Fox.

Although the school closure plan has a disparate impact on African-American students—9.2 percent of DCPS students are white, but only two of the 3053 students at closing schools are white—the district court found “the pattern here is clearly explainable on grounds other than race,” adding:

Indeed, it is explained by the single, race-neutral justification for the school closings that DCPS has offered throughout: closing under-enrolled schools will save resources that can then be spread throughout the school district to benefit all students.

Lawsuits filed by the Chicago Teachers Union make similar claims to the DC case: discrimination, violations of US laws intended to protect students with disabilities, and those that govern the education of children of immigrants.

Based on the Sixth Circuit ruling here and its quick adoption as a precedent in DC, we expect the Chicago lawsuits to fail as well.

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more biographical information, see the About page.